Burnell v. Weld , 59 Me. 423 ( 1871 )

Barrows, J.

The trustees except to the ruling at nisi prius charging them upon their disclosure, and present their disclosure. The matters upon which they rely in argument have all been determined in this State against them. As to those points a reference to the following decisions is all that we deem necessary. Whitney v. Monroe, 19 Maine, 42; Thompson v. Lewis, 34 Maine, 167; Smith v. Cahoon, 37 Maine, 281; Staples v. Staples, 4 Maine, 532.

Yet the trustees were improperly charged, and the exceptions must be sustained. The disclosure shows notice to the trustees from one Chester Bullock of an assignment to him, purporting to have been made prior to the commencement of this process. Under such circumstances, before the plaintiff can claim to have the trustee charged, unless the claimant appears voluntarily, the plaintiff must have notice issued and served on him, under the provisions of R. S. § 32, c. 86.

The rights of such claimant cannot be cut off by a process to which he is not a party and of which he has no notice. It is necessary to the protection of the trustee that there should bo such proceedings as will settle the question, whether the fund belongs to the principal defendant or to the claimant; and the plaintiff, if he would perfect his attachment, must give the claimant such notice as the court may order, before they will proceed to adjudicate upon a question affecting his rights. The ruling that the trustee was chargeable before these proceedings were had, was erroneous. See Dalton v. Dalton, 48 Maine, 42; Bunker v. Gilmore, 40 Maine, 91; Wheeler v. Evans, 26 Maine, 135 ; Emery v. Davis, 17 Maine, 252; Legro v. Staples, 16 Maine, 252; Fiske v. Weston 5 Maine, 410.

The reading of voluminous trustee disclosures, is practically impossible at nisi prius, and the presiding judge must, of necessity, rely upon counsel to present all the points necessary to a correct adjudication. In the present case, he ruled correctly upon the points which were presented; but these exceptions bring up the whole disclosure, and it does not appear that the vital question raised by the disclosure, in its nature preliminary to the charging of the trustee, bad been determined, or that the case was in such a position that we can make a decision that would be binding on all the parties interested upon that question.

Mvceptions sustained.

AppletoN, C. J.; Kent, Walton, and DickeRSON, JJ., concurred. Tapley, J., concurred in the result.